TIAN HONGMEI v. ZHANG WEI AND OTHERS

CAMP 30/2024, [2024] HKCA 453

On an intended appeal from [2023] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2024

(ON AN INTENDED APPEAL FROM HCAP NO. 29 OF 2022)

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JUDGMENT

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Hon Chu VP (giving the judgment of the Court):

A.  Introduction

1.  This is a renewed application by the plaintiff for leave to appeal against the decision of Deputy High Court Judge Au Yeung (“Judge”) given on 18 October 2023 (“Decision”) refusing her application for summary judgment.[1]  The plaintiff’s previous application for leave to appeal was refused by the Judge on 29 January 2024 (“Leave Decision”).[2]

2.  Having considered the documents filed by the parties and their respective submissions, we consider that it is appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A (“RHC”).

B.  HCAP 29/2022

3.  The plaintiff is the surviving spouse of Cha Mou Sing Payson (“Deceased”) who passed away on 6 November 2020.  They were married on 29 December 2017 in New Zealand.

4.  The 1^st defendant was a director of several companies owned by the Deceased.  The 2^nd defendant was the Deceased’s secretary.  The 3^rd defendant is the elder sister of the Deceased.  The 4^th defendant is the adopted daughter of the Deceased.

5.  The 1^st, 2^nd and 3^rd defendants were named as executors of the Deceased’s estate (“Estate”) in a will (“Purported Will”) purportedly signed by the Deceased on 4 November 2020, i.e. two days before his death.

6.  On 18 December 2020, the 1^st to 3^rd defendants applied for a grant of probate in respect of the Purported Will (HCAG 015821/20).  The plaintiff entered a caveat (HCCA 764/2021) in respect of the Estate on 23 February 2021.  The 1^st to 3^rd defendants refused to withdraw their probate application despite the demands made by the plaintiff.

7.  On 12 August 2022, the plaintiff issued the writ in the probate action below.  The Statement of Claim was filed on 9 September 2022.

C.  The plaintiff’s pleaded case

8.  The plaintiff’s pleaded case as appeared by the Statement of Claim may be summarised as follows.

9.  In August 2020, the Deceased was diagnosed with bile duct cancer.  He went to the United States for treatment, accompanied by the plaintiff.  The Deceased’s health deteriorated in late October 2020.  On 2 November 2020, he began receiving hospice care at his house in the United States (“House”).

10.  On 4 November 2020:

(1)  The 2^nd defendant represented to the plaintiff at the House that the Deceased was required to sign a document as a matter of formality for the Deceased’s companies.  The document later transpired to be the Purported Will.

(2)  In the evening of 4 November 2020, the plaintiff, not knowing that the document was purportedly a will, presented the document to the Deceased in the presence of Dr Wing Jung King (“Dr King”), a retired physician who was responsible for liaising with the Deceased’s attending doctors in the United States, Siu Wai Ming (“Siu”), who was the Deceased’s driver[3], Hiap Chie Siang (“Karen”), who was the Deceased’s housekeeper[4] and the 2^nd defendant.

(3)  Despite those around him repeatedly calling his name and asking him to sign the document, the Deceased did not acknowledge those calls or show any sign that he knew he was being asked to sign the document.  Throughout the alleged execution of the Purported Will, the Deceased’s eyes were shut, his body was still and he appeared to be unconscious.

(4)  The ink blot appearing in the space reserved for the Deceased’s signature on the Purported Will was caused by the involuntary movement of the Deceased’s right hand and/or the movement of the document underneath the pen.

(5)  The Purported Will was not read over or explained to the Deceased.  Nor did the Deceased read it himself before it was purportedly executed.

11.  The plaintiff had recorded the process of the alleged execution of the Purported Will in a video (“the Video”).

12.  The operative parts of the Purported Will dealing with the disposition of the Estate were left blank.  The only consequential provision is clause 3 appointing the 1^st to 3^rd defendants as executors of the Estate. 

13.  There is no dispute that the Purported Will was also executed by Dr King, Siu and Karen as attesting witnesses.[5]

14.  The plaintiff’s case is that the Purported Will is invalid in that:[6]

(1)  It was not duly executed in accordance with section 5(1) of the Wills Ordinance, Cap. 30;

(2)  The Deceased lacked testamentary capacity at the time of the alleged execution of the Purported Will; and

(3)  The Deceased did not know or approve of the contents of the Purported Will at the time of its alleged execution.

15.  The plaintiff does not seek the grant of letters of administration of the Estate to herself.  Instead, the Statement of Claim referred to a document dated 9 July 2020 and signed by the Deceased (“July Document”) and pleaded the following in paragraph 12:

“12. For completeness and the avoidance of doubt:

12.1 The Deceased also left a signed document, dated 9 July 2020 and witnessed by the 2^nd Defendant, in which he expressed his wish to leave certain cash sums to a number of specified individuals, including the 4^th Defendant.

12.2 The Plaintiff reserves the right to contend that this document is a duly executed will pursuant to section 5(2) of the Wills Ordinance (Cap 30) and/or has the effect of disentitling the 4^th Defendant from receiving any part of the Deceased’s residuary estate.

12. The Plaintiff commenced this action seeking the relief prayed for below at this stage for the purpose of obtaining a determination that the Purported Will is invalid and that therefore the 1^st to 3^rd Defendants have no basis to interfere or intermeddle with the administration of the Estate.  It is hoped that after the Court rules in favour of the Plaintiff, the Plaintiff and the 4^th Defendant can discuss and agree on how the Estate should be administered, and that an appropriate uncontested application for grant of representation can be made in due course.”

16.  The Statement of Claim sought the following relief:[7]

(1)  Pronouncement against the validity of the Purported Will;

(2)  Dismissal of the Probate Application; and

(3)  Liberty for the plaintiff or the 4^th defendant to “apply for an appropriate grant of representation in due course”.

17.  It was also pleaded that the 4^th defendant was joined as a party for the purpose of ensuring that she, as the Deceased’s adopted daughter and a potential beneficiary of the Estate, would be bound by the outcome of this action.[8]

D.  The summary judgment application

18.  On 26 September 2022, shortly after the filing of the Statement of Claim, the plaintiff took out a summons for summary judgment (“Summons”). In her supporting affirmation, the plaintiff stated that the Video puts it beyond doubt that the Deceased was unresponsive or unconscious, that the Deceased clearly did not know he was being asked to sign a will, and that the Purported Will is plainly invalid.[9]  Siu also filed two affidavits in support of the Summons.

19.  The Summons was opposed by the 3^rd defendant on the following grounds:[10]

(1)  The probate action is improperly constituted as the plaintiff has failed to join proper and necessary parties as defendants.

(2)  There is non-compliance of Order 15 rule 13A of the RHC in that the plaintiff has not notified the beneficiaries under the will in issue.

(3)  The Statement of Claim is incomplete and defective.

(4)  There are triable issues that cannot be resolved on affidavits.

20.  While the 1^st and 2^nd defendants indicated in their respective Acknowledgements of Service that they did not intend to contest the proceedings,[11] each of them has filed affirmation evidence in opposition to the Summons on behalf of the 3^rd defendant.[12] The other individuals who filed affirmation evidence on behalf of the 3^rd defendant are a solicitor involved in preparing the earlier drafts of the Deceased’s will,[13] and the Deceased’s two younger sisters who visited the Deceased at the House in the afternoon of 4 November 2020.[14]

21.  From the evidence filed on behalf of the 3^rd defendant, there is a dispute over the plaintiff’s version of events on 4 November 2020 and her case on the mental condition of the Deceased at the time of the execution of the Purported Will.[15]  For example, it is the evidence of Karen (who was one of the attesting witnesses of the Purported Will) that:

(1)  The Deceased appeared to be awake and conscious when he signed the Purported Will.  The Deceased’s hand was slightly shaking, but he was still able to hold on to the marker pen and make a continuous stroke without anyone assisting him.[16]

(2)  The plaintiff told Karen and Siu that the document was the Deceased’s will.  She asked Dr King, Siu and Karen to sign on the document as witnesses.[17]

22.  The 4^th defendant has indicated that she would adopt a neutral stance in respect of the validity of the Purported Will, and reserve her right to respond to the matters pleaded in paragraph 12 of the Statement of Claim as and when those matters become live issues for determination.[18]  She was excused from attending the substantive hearing of the Summons.[19]

E.  The Judge’s decision

23.  The Judge disposed of the summary judgment application on one ground alone.  He was of the view that the “piece-meal” approach adopted by the plaintiff is wrong and against the well-established principles as set out in Li Cheong v Lee Kwai Tai (2020) 23 HKCFAR 116 and Choy Po Chun v Au Wing Lun [2012] 2 HKLRD 148.  The Courts in those cases held, among others, that:

(1)  A judgment in a probate action is by nature in rem.  It is incumbent on all those who have rival claims to advance their claims simultaneously so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly: Li Cheong at [42].

(2)  The court’s function in a probate action is inquisitorial.  The court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action) who is entitled to representation.  Generally, it will not (except in the case of a revocation action) merely dismiss the action without more: Choy Po Chun at [16].

24.  The Judge’s application of these principles to the present case is encapsulated in [48] to [51] of the Decision as follows:

“48.  As explained, by this probate action, the plaintiff has taken the course of merely seeking to, in Mr Man SC’s own words, “get rid of” the 1^st to 3^rd defendants, without taking one step further in asking the Court to make a grant of probate of a will or letters of administration in respect of the Deceased’s estate.  As to whether the Deceased died intestate, the plaintiff’s stance is vague, in that she only stated in paragraph 12 of the Statement of Claim that she reserved her right to contend that a document signed by the Deceased dated 9 July 2020 is a duly executed will pursuant to section 5(2) of the Wills Ordinance and/or that such a will has the effect of disentitling the 4^th defendant from receiving any part of the Deceased’s residuary estate.  On that basis, in the Prayer, she asked, inter alia, for an order that there be “liberty for the plaintiff or the 4^th defendant to apply for an appropriate grant of representation in due course”.

49.  Hence, while the grant of summary judgment in favour of the plaintiff would bring this probate action to the end, there will be no grant of probate or letters of administration in this probate action.  In the event the plaintiff and the 4^th defendant could not come to any agreement at the end of the day (pursuant to the hope as expressed in paragraph 12.3 of the Statement of Claim), the matter would have to be resolved in another probate action.

50.  It seems to me that this very special course of action taken by the plaintiff is unprecedented (indeed, neither of the legal teams was able to locate any authority in which a similar approach had been adopted) and is against the well-established principles which were time and again referred to by the Courts in Hong Kong.  In my view, the approach adopted by the plaintiff herein is wrong.  The plaintiff is obliged to put forward the entirety of her positive case rather than simply asserting that the Purported Will is invalid (even if the plaintiff is right that there is no chance for the Purported Will to be admitted to probate), because the question of probate in relation to the Deceased’s estate has to be decided by the Court once and for all.

51.  Therefore, I take the view that the summary judgment application must be dismissed.  The Court should not adjudicate the matter on such a piece-meal basis.  All issues should be placed before the Court.”

25.  The Judge concluded that the plaintiff’s claim, as it now stands, is defective in that it has not pleaded all the necessary issues, and the Summons should be dismissed.

26.  With a view to facilitating discussions among the parties on their disputes and the further conduct of the case, the Judge directed the parties to agree on the directions to be sought for the future conduct of the present case and extended time for the 3^rd and 4^th defendants to file and serve their respective Defence until further order.[20]

F.  The plaintiff’s intended grounds of appeal

27.  It is trite that leave to appeal shall not be granted unless the Court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

28.  The plaintiff advances two grounds of appeal in the draft notice of appeal as follows (respectively “Ground (1)” and “Ground (2)”):

(1)  The Judge erred in law (i) in concluding that the Court cannot in this action pronounce against the validity of the Purported Will but must make a grant of probate of a will or letters of administration in respect of the Deceased’s estate; and (ii) in dismissing the Summons on the ground that the plaintiff was “adopting a piece-meal approach”.  This is particularly so in a case where (as here) there is an extant and hopeless claim that a purported will should be admitted to probate.  The Court must have power to pronounce against such an alleged will with or without a trial even if, before it can be decided what grant should be made, there are other issues which may require determination in the same action or in a further action.

(2)  The Judge further erred in failing to find that the Purported Will is plainly invalid, that the defendants have not raised any triable issue in respect of the plaintiff’s claims, and that therefore summary judgment should be entered in favour of the plaintiff.

G.  Our reasons for decision

G1. Ground (1)

29.  In a nutshell, Ground (1) argues that even if there are other issues concerning precisely what grant the Court should make ultimately, there is no reason why, given the right facts, the Court is powerless to summarily pronounce against a plainly invalid will, particularly when Order 14 is indisputably applicable to probate actions.[21]

30.  It was well established in Li Cheong and Choy Po Chun that all those parties who have rival claims in a probate action should advance their claims “simultaneously” so that the probate court could adjudicate on them in a judgment which would bind all rival claimants “once and for all”, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly.  This is the basis upon which the Judge concluded that the “piece-meal” approach adopted by the plaintiff, and in particular her “vague” stance on the July Document, is wrong.

31.  The plaintiff seeks to argue that Li Cheong and Choy Po Chun are distinguishable as neither of them concerns the situation in the present case where a plaintiff merely claims for a pronouncement against the validity of a purported will without seeking a grant of representation.[22]  The Judge pointed out in [6] and [7] of the Leave Decision that the principles articulated in Li Cheong (at [42]) and Choy Po Chun (at [16]) are of general application in probate actions.  We agree.  We do not consider that a valid distinction can be drawn between the two cases and the present case.  There is nothing in Li Cheong and Choy Po Chun to suggest that the principles stated above only apply to cases where a party seeks to prove the will in solemn form or a grant of representation, but not where a party seeks to pronounce against a will.  As submitted by the 3^rd defendant, what is important is the nature of a probate action which underlines the applicability of these principles does not turn on which party first instituted the probate proceedings in relation to where they stand on the validity of a disputed will.[23]

32.  In our view, the Judge is correct in holding that the plaintiff has failed to plead all the necessary issues, particularly in relation to the July Document, in the Statement of Claim.  In the pre-action correspondence, the plaintiff had indicated that she would seek a declaration that the Deceased died intestate and a grant of letters of administration of the Estate to herself.[24]  The Statement of Claim, however, merely pleads that the plaintiff reserves her right to contend that the July Document is a duly executed will under section 5(2) of the Wills Ordinance.  Evidently, the plaintiff has not pleaded the entirety of her case.  As a result, it is not possible to discern from the Statement of Claim whether her position is that the Deceased died with a will, or that he died wholly or partially intestate.  The plaintiff’s approach clearly falls foul of the requirement that rival claims should be advanced simultaneously in a probate action (Li Cheong at [42]). 

33.  We also agree with the 3^rd defendant[25] that the plaintiff’s failure to plead her case on the July Document is at odds with the requirement under Order 76 rule 5 of the RHC that a party to a probate action must describe “any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge”.  On its face, the July Document relates, or at least potentially relates, to the same subject matter of this probate action, i.e. the Estate of the Deceased.  Absent a proper plea by the plaintiff on the July Document, it would not be possible for the Court to perform the inquisitorial function and to make a positive finding as to whether the Deceased died intestate, as explained in Choy Po Chun at [16].

34.  The plaintiff is at pains to emphasise that Order 14 of the RHC is applicable to probate actions (relying on Re Lau Siu Wah [2005] 1 HKC 364 at [19]).[26]  While this is so, summary judgment is seldom likely to be appropriate in a probate action.  In Re Estate of Chan Fook Lai (Deceased) [2024] 1 HKLRD 29, [2023] HKCA 1177 at [2], this Court has observed that a summary judgment application in a probate action should be approached with care. 

35.  The same point was made by the learned editors in Tristram & Coote’s Probate Practice (32^nd Ed) at paragraph 38.44 (the corresponding passage in an earlier edition was cited with approval in Choy Po Chun at [19]) :

“Summary judgment under CPR Pt 24 is available but seldom likely to be appropriate in a probate claim. There are cases where it can be seen that a particular plea is bound to fail but they are comparatively rare. Where a case involves an issue as to testamentary capacity, the case will not be suitable for summary judgment where there is a fundamental issue between the parties about the state of a testator’s mental health when a will was executed. …”

36.  The case of Goss-Custard v Templeman [2018] EWHC 2476 (Ch) was referred to in the footnote to the above passage.  In that case, Master Shuman refused to grant summary judgment for an order pronouncing against the 2008 will of the late Lord Templeman on the ground of lack of testamentary capacity (at [1]-[2]).  It was acknowledged in [56] of the decision that summary judgment in a probate claim is “unusual, although possible”.[27] 

37.  Ultimately, whether summary judgment should be granted in a particular probate action must depend on the individual circumstances of the case and the way in which the parties pleaded their case in the proceedings.  In this regard, it is trite that in an application for summary judgment, the statement of claim must be good and complete in itself: Tan Khay Chuen & Another v Ko Ping Shun Benson, CACV 238/2015, 8 July 2016, at [23]; see also Hong Kong Civil Procedure 2024 vol 1 at [14/1/5].  In this case, the Judge has found that the Statement of Claim is defective in the sense that it has failed to plead all the necessary issues, including the plaintiff’s case on the July Document.  The plaintiff’s reliance on the applicability of Order 14 of the RHC to probate actions does not take her position any further.

38.  The plaintiff also draws assistance from the underlying objectives in Order 1A rule 1 of the RHC and submits that the 3^rd defendant should not be permitted to pursue a hopeless claim in respect of the validity of the Purported Will and to intermeddle with the administration of the Estate.[28]  In our view, the underlying objectives do not detract from the general principles set out in Li Cheong and Choy Po Chun.  If anything, the requirement laid down in these cases that all parties in a probate action shall advance their rival claims simultaneously so that a binding judgment could be made once and for all in relation to the same estate serves to achieve finality in litigation and is thus in keeping with the underlying objectives.  We are unable to see how the underlying objectives can be achieved on the plaintiff’s approach, which will lead to further litigation on the grant of representation in relation to the Estate in another probate action, especially if no agreement is reached between the plaintiff and the 4^th defendant contrary to what was envisaged in paragraph 12.3 of the Statement of Claim.

39.  For the above reasons, we are not satisfied that there is any reasonable prospect of success in Ground (1).

G2.  Ground (2)

40.  Ground (2) contends that the Purported Will is plainly invalid and that no triable issues have been raised in respect of the plaintiff’s claims.[29]

41.  We do not consider that this ground is engaged given that the Summons was dismissed on one ground alone, namely the defect in the Statement of Claim to plead all the necessary issues: see [45] and [54] of the Decision.  The Judge has also made it clear in [51] and [52] that the Court should not adjudicate the matter on a piece-meal basis and that it is inappropriate to express any view on the validity of the Purported Will at this stage.  As such, Ground 2 does not arise for consideration.

G3. Conclusion

42.  In light of the above, we are not satisfied that there is any reasonable prospect of success in the intended grounds of appeal.  Nor are we satisfied that there is any other reason in the interests of justice to grant leave to appeal.  Leave to appeal should be refused.

43.  As this application is totally without merit, we further make an order pursuant to Order 59 rule 2A (8) of the RHC that no party may under rule 2A(7) request the determination of this Court to be reconsidered at an oral hearing inter partes.

G4.  Costs

44.  There is no reason to depart from the usual rule that costs should follow the event.  The plaintiff should pay the 3^rd defendant’s costs of this application.  The 3^rd defendant asks for costs to be awarded on an indemnity basis.  We do not consider that this application contains any special or unusual feature which would justify the award of costs on a higher basis.  We therefore order the 3^rd defendant’s costs of this application be paid on party and party basis.

45.  Having considered the 3^rd defendant’s statement of costs, and taking a broad-brush approach, we summarily assess the 3^rd defendant’s costs at HK$ 250,000, which is inclusive of counsel fee.